Interim Decision #1788 

MATT= OF MESA 

In Adjustment of Status Proceedings 

A-12901500 

A-12901289 

Deoicled by Deputy Associate Commissioner September 6, 1967 

While a Cuban refugee applicant for adjustment of status who falls within 

the provisions of sections 212(a) (15) and 241(a) (8), Immigration and Nationality Act, pertaining to aliens likely to be, or who are, public charges, is 

not thereby precluded from establishing statutory eligibility under section 1 

of the Act of November 2, 1966 as an alien eligible to receive an immigrant 

visa and admissible to the United States for permanent residence, such factors 

may be considered in determining eligibility for such relief as a matter of 

administrative discretion. 

These cases are before us by certification, pursuant to 8 CFR 

103.4, of the Southwest Regional Commissioner's decision denying the 

aliens' applications for adjustment of status under section 1 of the 

Act of November 2, 1966. The denial was based on a finding that the 

applicants were inadmissible for permanent residence under section 

212(a) (15) of the Immigration and Nationality Act, as persons likely 

to become public charges, hence, statutorily ineligible for the status 

sought. The decision will be reversed. 

The applicants, husband. and wife, 55 and 01 years of age, respectively, are natives and citizens of Cuba. They were paroled into the 

United States as refugees from Cuba on April 9, 1962. They have not 

since departed from this country and are still in parole status. They 

now seek a. change of status to that of permanent resident aliens. 

In pertinent part, section 1 of the Act of November 2, 1966 reads 

as follows : 

". . . the status of any alien who is a native or citizen of Cuba and who has 

been inspected and admitted or paroled into the United States subsequent to 

January 1, 1959 and has been physically present in the United States for at 

least two years, may be adjusted by the Attorney GeneraZ, in his discretion 

and under such regulations as he may prescribe, to that of an alien lawfully 

admitted for permanent residence if the alien snakes an application for such 

adjustment, and the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence" (Emphasis supplied). 

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Interim, Decision #1788 

As the Regional Commissioner has acknowledged, the applicants 

have satisfied the arrival and physical presence requirements of the 

Act and have made application for such adjustment. However, the 

Regional Commissioner has found that they have not met the terms of 

the statute with respect to eligibility to receive an immigrant visa and 

admissibility to the United States in that they are presently public 

charges and, as such, come within the proscriptive provisions of section 212(a) (15) of the Immigration and Nationality Act. 

The facts are as follows. The applicants arrived in the United States 

at Miami, Florida in April 1962 and thereafter relocated in San Francisco, California in July of that year. The applicants have acknowledged, and the record shows, that since their arrival in San Francisco 

they have been jointly supported by funds in the amount of $165.00 a 

month received from the San Francisco Department of Public Welfare. The record shows that these funds are furnished under that 

Department's "Cuban program". 

At the time of their departure from Cuba the husband was the 

owner of a coffee roasting firm. Since their arrival in the United States 

neither applicant has been employed. At an interview, in connection 

with their applications, the husband stated that he was physically able 

to work but had not been employed "on account of my age and also 

due to my poorness in speaking the English language". Parenthetically, it is noted that the interview was conducted in the Spanish language. The husband stated, however, that they plan to return to Miami, 

at which time they would give up their welfare assistance, where he 

had offers of employment from two friends, one of whom was a painting contractor and the other the owner of a bakery. He added, "My 

children are already permanent residents anti we wish ours too. In that 

way we can get better jobs and be better citizens. I am grateful to this 

country and by having my residence, I feel part of it." 

The applicants, who reside with their married son and his wife and 

child, stated that by joining funds received from the welfare department with the wages earned by their son, who has a modest job, they 

are able to live comfortably. They have never sought financial assistance from any private organization. They stated that their daughterin-law is also employed and during the absence of the son. and 

daughter-in-law the applicants care for their granddaughter. The 

applicants also have a married daughter who is employed, as is her 

husband. This couple also have a child and do not contribute to the 

support of the applicants. As previously indicated, both of the applicants married children have acquired lawful resident alien status. 

The applicant husband stated that in the event the funds received 

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Interim Decision #1788 

from the welfare department were discontinued he is confident that 

their children would take care of them. 

Section 212(a) (15) of the Immigration and Nationality Act, a 

ground for the exclusion of aliens, the provisions of which the Regional Commissioner has found to be a statutory bar to the granting 

of these applications reads as follows: 

Aliens who, in the opinion of the consular officer at the time of application for 

a visa, or in the opinion of the Attorney General at the time of application for 

admission, are likely at any time to become public charges; 

A similar ground for the expulsion of aliens, is contained in section 

241(a) (8) of that Act and reads: 

in the opinion of the Attorney General, has within five years after entry become a public charge from causes not affirmatively shown to have arisen after 

entry; 

It is well settled that aliens who are likely to be, or who are, supported at the expense of the public }.cause of poverty or some physical 

handicap come within the above statutory proscription. See Matter of 

M— and Matter of T—? Accordingly, if the provisions of section 

212(a) (15) , supra, apply to applicants for adjustment under section 

1 of the Act of November 2, 1966, on the facts here these applicants 

are, at present, statutorily ineligible for the status sought, as found 

by the Regional Commissioner. 

In that regard we also find it necessary to consider the above ground 

for expulsion under section 241 (a) (8), supra, for the obvious reason 

that it would be purposeless to find such applicants to be eligible for 

visas and admissible and grant the applications for adjustment if the 

factual situation showed that they would immediately thereafter become deportable under that expulsion provision. In fact, -it has been 

held that such a situation would support a finding of inadmissibility 

even though not a specific statutory ground for excludability.' Assuming arguendo, however, that such would not apply to this particular 

expulsion ground, the sound exercise of discretion, provided for in the 

Act of November 2, 1966, would generally warrant denial of an application if in fact the alien would be deportable thereunder. 

The purpose of the Act upon which these applications are based 

is to provide a ready means to permit certain Cuban refugees in the 

United States to adjust to permanent resident status, in the discretion 

of the Attorney General, if they are eligible to receive an immigrant 

visa and are admissible for permanent residence. Many of these refugees are presently impoverished by force of circumstances beyond 

their control and are dependent upon Federal assistance. A major ob2L &N.Dee.191; I:&N. Dec. 841. 

1 Matter of V--,11. & N. Dec. 293 ; Matter of R—G—, 8 L & N. Dec.128. 

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Interim Decision #1788 

jective of this opportunity for adjustment of status was, therefore, 

to aid in these refugees' resettlement by enhancing their opportunity to 

qualify for employment here and in turn reduce the Government's expenditures in their behalf .° 

It. is axiomatic that laws remedial in nature, such as the Act under 

discussion, should be construed liberally. This then becomes a question 

of statutory interpretation of its qualifying terms relating to eligibility to receive a visa and admissibility to the United States with respect 

to section 212(a) (15) and section 241 (a) (8), supra. As was pointed 

out in Matter of S. S. Annik, 4 the primary rule in that regard is that 

the intent of the legislation is to be carried out. The meaning of the 

statute is to be found in its words, without resort to any materials 

clehors the words of the statute itself, since it is presumed that the legislature chose apt words to express its intention. But these rules of 

statutory construction must yield in situations in which it can be 

demonstrated that adherence to them would defeat the intention of the 

legislature. It has been said that canons of construction were evolved 

as aids in determining the intent of the legislature in enacting statutes, 

not as limitations in determining such intention.° 

S. S. Anna, supra, goes on to state that a well recognized basis for 

departing from the rule that a statute must be given its strict literal 

interpretation exists where application Of the rule would lead to an 

absurd, unjust, or unreasonable result. One of the classic illustrations 

of departure from the strict letter of a. statute is the case reported. in 

Plowden, which held that the statute of King Edward II, which provided that a prisoner who breaks prison is guilty of a felony, did not 

extend to a prisoner who breaks out because the prison was on fire—

"for he is not to be hanged because he would not stay to be burnt." ° 

We shall therefore briefly review the history of the legislation under 

reference ' to determine whether strict literal application of the provisions mentioned would be consistent with the intent of the Congress. 

Commencing early in 1959 the Cuban Government, under Fidel Castro, 

turned that country into a Communist dominated area and enacted 

laws confiscating private property and other legislation oppressing 

H.R. Rep. No. 1978 89th Cong. 2d Sees. (9/1/66). 

' 1 I. & N. Dec. 418 at 420. 

° Barrett v. Van Pelt, 268 U.S. 85; Van Camp ce Sons Company v. American 

Can Company, 278 U.S. 245; Daneiger v. Cooley, 248 U.S. 819; Boston Sand and 

Gravel Company v. United States, 278 U.S. 41. 

e United Ptatee v. Kirby, 7 Wall. 492. 

• Except where otherwise indicated, the general reference sources are as fol. 

lows: H.R. Rep. No. 1978, 89th Cong., 2d Sees. (9/1/68) ; S. Rep. No. 1675, 89th 

Cong., 2d Bess. (10/4/66) ; 112 Cong. Rec. 170, pp. 24458-55 (10/6/68) ;112 Cong. 

Rec. 158, pp. 21988-94 (9/10/68). 

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Interim, Decision #1788 

the rights of its people. As a result, Cubans began to seek asylum in 

the United States in ever increasing numbers. These refugees, in the 

main, because of the circumstances of their departure arrived with 

little in the way of money or valuables and most of those that were 

fortunate enough to have either, soon found their assets exhausted. 

As Miami, Florida was the most accessible port from that country, the 

impact of this large number of Cuban refugees was first centered in 

that State. 

In early 1961, the late President John F. Kennedy directed the 

establishment of a Cuban Refugee Program under the Department 

of Health, Education and Welfare to alleviate the plight of these refugees. In June 1962 Congress enacted the Migration and Refugee Assistance Act of 1962 ' authorizing the President to, among other things, 

render further assistance to qualified refugees who "are in urgent need 

of assistance for the essentials of life." In addition to the latter, the Act 

provides for assistance to State or local public agencies providing 

services for qualified refugees; health and educational services; special training for employment and for the expense of transportation to, 

and resettlement in, other areas of the United States, as well as other 

benefits. 

By Executive Order 11077, effective July 1, 1962, 9implementation 

of these aspects of that Act was assigned to the Secretary of Health, 

Education and Welfare. This program has been continued under the 

Cuban Refugee Program of that Department. 18 

In general, financial assistance is furnished under this program by 

the various State and municipal welfare departments who in turn are 

reimbursed therefor from Federal funds provided for the program in 

accordance with provisions of the Migration and Refugee Assistance 

Act, supra. That Act does not foreclose the use of these funds for these 

alien refugees after they have had their status adjusted to that of 

lawful permanent residents and such financial or other assistance 

necessary to the well being of these people is continued to be extended 

where needed." The Committee reports clearly reflect that the Congress in considering the enactment of the Act of November 2, 1N6 was 

deeply conscious of the financial plight of these people and a major 

reason for the bill's enactment, as previously indicated, was to stabilize 

these refugees' immigration status as an essential element toward 

assisting them to become self-sufficient by removing or alleviating 

P.L. 87-510. 

'28 FR 629. 

"Hearings: Subcommittee #1; House Committee on the Judiciary, A th Cong., 

2d Sens.. #20. August 10, 11 & 17, 1966 (pp. 49-71). 

Cong. Rec. 170, p. 24454 (10/6/66) ; 112 Cong. Rec. 158, p. 21987 (9/19/00). 

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Interim Decision #1788 

some barriers to employment stemming from the lack of firm roots, and 

thereby aid in reducing the Government's expenditures in their behalf. 

It is clear from all of the foregoing that the Congress was keenly 

aware of the need for and receipt of assistance, financial and otherwise, 

by the beneficiaries of the then proposed legislation. Also, with regard 

to possible deportability of Cuban recipients of financial assistance, 

one of the cooperating voluntary social agencies expressed concern to 

the Senate Subcommittee that because "'a Cuban refugee has been 

receiving public assistance and support * * * through our Cuban 

Refugee Program * * * they might be subject to deportation on the 

basis of indigency. We would like to see that this situation should not 

develop * * *". To which a committee member responded in pertinent 

part, "" * the ha: .1 fact, * * * is that economic issues do not permit 

the absorption of all these people, and the problem that you suggest 

might cause trouble unless we anticipate it. It is a deportable thing, 

I am told, for an alien. But I would be amazed if that rule of law was 

ever applied in the circumstances we find existing there"." 

We conclude that Congress, in setting out the requirement in the 

Act of November 2, 1966 that an alien applicant be eligible for a visa 

and admissible to this country, did not intend requiring application 

of the provisions of section 212(a) (15) or section 241(a) (8) of the 

Immigration and Nationality Act, supra, in light of the Congressional 

history showing the recognized impoverished circumstances of many 

of the refugees it proposed to benefit and the special legislation enacted 

to render them Federal assistance. Otherwise, to apply those provisions 

would have the effect of materially defeating the humanitarian purpose 

for enactment of the Act. Indeed, President Lyndon B. Johnson, in 

directing the waiver of permanent resident application fees stated that 

he did so "on humanitarian grounds" in that "Cuba requires that refugees coming to this country turn over to the Cuban Government any 

worldly assets they own before leaving the country. Most Cuban refugees are able to accumulate very few resources in a two-year period." " 

It is found, therefore, that the statutory ground of ineligibility asserted by the Regional Commissioner is not sustained and that the 

applicants are eligible for the status sought. 

There remains a question as to whether the applications should be 

granted as a matter of administrative discretion. The fact that the 

above-cited exclusion and expulsion grounds are found not to be a 

statutory bar does not necessarily preclude denial of an application as 

"Hearings: Subcommittee on L & N., Senate Committee on the judiciary, 89th 

Cong., 2d Sess., Vol. 1, August 16, 1966 (S. 1241, S. 3712), pp. 8647. 

23Presidential Documents, Monday, November 21, 1966, Vol. 2, No. 46, pp, 

1682-83. 

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Interim Decision #1788 

a matter of discretion 14if it is found, for example, that circumstances 

with respect to the acceptance of public assistance were such that the 

applicants were not deserving or that their presence here on a permanent basis would not otherwise be in the best interests of the United 

States. 

In the foregoing regard, the character of the subjects is unquestioned. It is noted that the monthly monetary amount they receive is 

moderate and is supplemented by earnings of their son and daughterin-law, with whom they live; that the applicant husband is willing to 

work but has been handicapped by the language barrier and that he has 

actually taken action, apparently prior to the notice of denial of their 

applications, to separate his wife and self from their children in order 

to seek prospective employment in another area. Bearing in mind the 

recognized fact that Cubans have a strongly family-centered culture ID 

the latter evidences the sincere desire of the male applicant and his 

spouse to be self-sustaining. In that regard we note his comments previously quoted. "My children are already permanent residents and we 

wish ours too. In that way we can get better jobs and be better citizens. 

I am very grateful to this country and by having my residence, I feel 

part of it". 

It is concluded that favorable exercise of discretion is warranted. 

An appropriate order will be entered. 

ft is ordered that the order of the Regional Commissioner be, and 

hereby is, reversed and the applications granted. 

" Compare Matter of H—R—,7 L & N. Dec. 651. 

"Hearings: Subcommittee on 1. & N.. Senate Committee on the Judiciary, 

89th Gong., 2d Sens., Vol. 1, August 16, 1966 (S. 1241, S. 3712), p. 

438